The Mariupol Test: Analysing the Briefs of Third States Intervening in Ukraine and the Netherlands v. Russia

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The interstate case of Ukraine and the Netherlands v. Russia is currently pending on its merits before the Grand Chamber of the European Court of Human Rights. It is one of the most complex and politically momentous cases ever to be heard by the Court. Russia is no longer participating in the proceedings, and will not comply with any judgment rendered by the Court. This means that the immediate practical consequences of the judgment itself will be relatively limited, although I’m sure Ukraine will try to use it in various creative ways (for example, to justify the seizure of frozen Russian assets for any reparation that Ukraine is due, and the transfer of such assets by third states to Ukraine). The judgment will also have a symbolic, expressive impact. It may also bring some measure of satisfaction to the victims of the human rights violations at issue. But, perhaps most importantly, the judgment will provide the most authoritative statement by the Court on how the European Convention should apply extraterritorially and in armed conflict in future cases, those involving member states other than Ukraine. In other words, the import of this case is far from limited to the hostilities in Ukraine alone.

This is why I was particularly interested in reading the submissions of third states intervening in the case. Their views matter beyond the substantive quality of the arguments they make. Crucially, they are a signal from the Court’s core constituency – the same states that elect the Court’s judges and determine its budget – on what positions are normatively desirable or acceptable. The Court authorized (an unprecedented) 26 member states to intervene as third parties, in addition to some other intervenors. Readers might recall that Sangeeta Shah and I are acting in the case as amici curiae on behalf of the Human Rights Law Centre of the University of Nottingham (see our admissibility and merits briefs here and here), while a similar brief was also filed by the Geneva Academy of International Humanitarian Law and Human Rights (see here). Third-party submissions are public documents, but (like all written pleadings) they are unfortunately not available through the Court’s HUDOC platform. For the sake of convenience, therefore, readers can find all the ECHR states parties’ briefs here, as a downloadable archive.

In this post I intend to discuss the views of these 26 intervening states in some detail, while also providing readers with a preview of some of the outstanding legal issues. I will not provide much by way of background – for that, I would refer readers to my two-part post (here and here) discussing the Grand Chamber’s admissibility decision in the case a year ago. To briefly summarize, there the Court decided that:

  • Russia had Article 1 jurisdiction conceived of spatially, as effective overall control over territory, over those areas of Ukraine held by the Donetsk and Luhansk separatist entities since 2014; in particular, the Court extensively examined the evidence of Russia’s control over the DNR and LNR;
  • The 2014 downing of the MH17 airliner occurred in an area under Russia’s control, and is thus within its spatial jurisdiction;
  • The conduct of the DNR and LNR separatists was attributable to Russia, unless Russia could prove otherwise in specific instances;
  • Its 2021 Georgia v. Russia No. 2 judgment should not be read as excluding entirely a specific temporal phase during an international armed conflict from the scope of a state’s Article 1 jurisdiction (even though this is exactly what that judgment had said).

After delivering the admissibility decision in this case, the Court joined to it the most recent interstate application filed by Ukraine against Russia, dealing with the 2022 full-scale invasion (Ukraine v. Russia X – see here). This substantially expanded the scope of the case. It includes many instances of killing and mistreatment of individuals in the power of the enemy, e.g. in detention or on occupied territory, but these are not going to be my focus here. Rather, I will look solely at those incidents involving the conduct of hostilities.

The case now includes at least three distinct sets of such incidents: (i) the downing of the MH17; (ii) hostilities in Eastern Ukraine in 2014, including instances of artillery shelling; (iii) hostilities in Ukraine from 24 February up to 16 September 2022, when Russia ceased to be bound by the ECHR. Formally, the Court is yet to rule on the admissibility of the incidents in bucket (ii), the examination of which was left to the merits, and bucket (iii), which is not covered by its prior admissibility decision delivered before the joinder. For all of these incidents the core question is whether individuals killed in the course of hostilities died as a result of a substantive violation of Article 2 ECHR (right to life) – a very fact-sensitive inquiry, which is outside the scope of this post for any given incident. The same, again, goes for individuals killed or harmed outside the context of active hostilities, e.g. while in captivity, where the legal and factual questions are much more straightforward.

The outstanding questions of principle at the merits stage can be summarized as follows:

  1. Whether the Court’s findings on the spatial conception of Article 1 jurisdiction can be extended to events in 2022 – the answer to this question is undoubtedly yes, while control over certain specific areas can be a contested question of fact;
  2. Whether the personal conception of Article 1 jurisdiction, as control over the individual victim by a state agent, can cover lethal uses of force by Russia and its proxies – for example, whether a Ukrainian civilian killed by Russian armed forces through the use of artillery, a missile or an air strike should for that reason alone be regarded as being within Russia’s Article 1 jurisdiction, even if they were killed in an area that was clearly not under Russia’s control (e.g. in Kyiv or Lviv), or in an area over which control was being actively contested (e.g. during the battle of Mariupol);
  3. How the Court’s restrictive approach in Georgia v. Russia No. 2, in particular its invention there of the notion of a ‘context of chaos’ precluding jurisdiction, fits into this analysis (my view is that it should be discarded entirely, but the Court was understandably not keen on overruling itself so explicitly at the admissibility stage of the present case);
  4. Whether the approach to Article 1 jurisdiction should depend in any way on whether the territory on which the hostilities take place belongs to a state party to the ECHR (the espace juridique issue – again my view is that it quite clearly shouldn’t);
  5. How to conceptualize the relationship between Article 2 ECHR and the applicable rules of international humanitarian law (IHL) governing the conduct of hostilities; of particular relevance are situations in which the rules of the two bodies of law might conflict, a point expressly raised by the Court in its admissibility decision, but one not likely to arise on the facts of this case;
  6. How the Court should approach scenarios involving a mistake of fact;
  7. The relevance, if any, of the reference to deaths resulting from lawful acts of war in the Article 15 ECHR derogation clause;
  8. The relevance, if any, of the jus ad bellum violation by Russia, that is the fact that all deaths in the conflict stem from Russia’s decision to commit aggression against Ukraine.

All of these questions are addressed in the Nottingham merits amicus brief, to which I’ll refer readers who want more background on them.

Now, however, I want to turn to the submissions of the 26 ECHR member states, and how these states have addressed the outstanding issues above. All of these states are intervening to support Ukraine. To do that, all of these states have had to advance arguments to the effect that the Convention applies to all, or some, of the incidents that Ukraine alleges violate the Convention. They have done so through a joint coordinated brief. But, as I will explain, that brief is (largely) a carefully crafted exercise in ambiguity and compromise, and it is silent on some of the most controversial points. Some states supplemented it with their own submissions, which diverge in important aspects. In particular, the UK and France put forward submissions that theoretically support Ukraine, but in reality support Russia, on conduct of hostilities issues (this is not an exaggeration).

This is a long post, but even so it does not comprehensively cover all of the points raises in the briefs of the intervening states. I will focus here on the question whether, and how, the Convention should apply to deaths resulting from active hostilities in the conflict.

The structure of the third party interventions

As noted above, 26 member states submitted a joint intervention: Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Even though this was a joint brief, most states submitted it separately. The only difference between these versions might be in some prefatory or concluding remarks, a covering letter, or the signature. France and Luxembourg submitted the same document in French rather than in English. The joint brief consists of 47 paragraphs. I have no idea which state or states took the lead in the drafting or how the coordination process worked, but it probably wasn’t easy to navigate. If I had to guess, the style of the supplemental Dutch brief is so similar to the joint brief that I would venture that it was the Netherlands that took the lead in drafting the joint submission.

A strange aspect of this case is that the Netherlands is a party to the case, but only regarding its own application, which concerns the downing of the MH17 (that resulted in the deaths of many Dutch nationals), whereas it is a third party, like the other 25 states, for those violations raised by the joined application of Ukraine concerning the 2022 invasion. In the same proceedings, therefore, the Netherlands is both a party and a third party – I’m honestly not sure whether this has ever happened before any other international court.

In addition to the Netherlands, separate supplemental briefs were provided by Croatia (summarizing cases of the ICTY that are of no direct relevance for the issues I discuss in this post), the Czech Republic, France, Lithuania (which incorporated the Dutch brief into its own, but then added its own new section which is not found in the Dutch brief – paras. 68-76), Latvia, Poland (which also partly uses the text of the Dutch brief), and the United Kingdom. Additionally, the supplemental Dutch brief was expressly endorsed by Belgium, Spain and Slovakia in their covering letters.

It is particularly noteworthy how some of the supplemental briefs were filed by states that were historically quite opposed to the extraterritorial application of the Convention, especially in times of armed conflict – here I would specifically point to France, the Netherlands and the UK. The UK, obviously, had dozens of high-profile cases before its domestic courts and in Strasbourg regarding the Afghanistan and Iraq wars. The Netherlands also defended cases regarding its own participation in Iraq – most notably Jaloud – but, when the MH17 was destroyed, it found it untenable to maintain restrictive legal positions under which the mass killing of its own citizens aboard the plane would not be covered by the Convention. France has somehow managed to avoid extensive litigation regarding its many overseas military adventures, likely (I speculate) because of the absence of NGOs and law firms capable of finding clients in say Mali and pursuing their cases before French courts and in Strasbourg, but again it has historically resisted accepting that the Convention applies in such situations (comments from readers most welcome on this point). Now, however, in order to support Ukraine, all of these states find themselves in a bind – they have to argue that the Convention applies to (some? most? all?) Russian actions in Ukraine, but if they do so consistently they have to accept that the same standard should apply to their own behaviour, in previous and future conflicts. This is one of the most important dynamics at play here.

In my analysis of the various legal issues below, I will always start with the joint brief, to which all of the 26 states ascribe. But, as will become apparent, the joint brief is a rather strange document for a brief, in that it contains little by way of actual argument. Most of the brief consists of recapitulating the Court’s own recent case law on the issues raised. One would think the Court would be well aware of these cases. The argument, such as it is, is often confined to a couple of sentences or a single paragraph, with a substantial degree of ambiguity in what is actually being said. I have no inside information to confirm this, but my sense is that this lack of substance in the joint brief is entirely by design – it is essentially a lowest common denominator on which all of the 26 states, including the UK and France, could agree. The joint brief should therefore not be read or assessed as a fully developed legal argument. Rather, the joint brief is a signaling exercise – signaling to the Court that a great number of states regard certain positions as acceptable, and signaling more broadly that these states support Ukraine, without necessarily agreeing with the more ambitious parts of Ukraine’s own argument.

Generally on the Convention’s extraterritorial application and Article 1 jurisdiction

Paras. 14-25 of the joint brief recapitulate the Court’s recent case law on Article 1 jurisdiction. The main thing that’s notable about this recapitulation is that the overall tone of the brief is one of (implicit) approval. There is no sense from this that the intervening 26 states think the Court got something wrong in its case law (even though it very much did, and not infrequently). Put differently, there is no pushback here against the Court, and especially no signal that it went too far in its 2023 admissibility decision in this case.

The intervening states seem to agree, in particular, with the Court’s ruling at the admissibility stage of this case that all of the acts of the DNR and LNR subordinate local administrations were attributable to Russia (para. 21). The intervening states agree with this holding even though attribution and jurisdiction are distinct issues and the Court didn’t refer to or apply the ILC Articles on State Responsibility or the case law of the ICJ in this regard. The intervening states also agree with the Court’s holding that the spatial conception of jurisdiction could apply during the conflict to territories controlled by Russia, directly or indirectly.

At para. 23 the joint brief deals with the personal conception of jurisdiction. Here the ‘intervening Governments collectively submit that, even in an international armed conflict, if an individual is taken into the custody of State agents, this may give rise to jurisdiction for the purposes of Article 1 of the Convention.’ Note that the intervening states submit that extraterritorial detention may give rise to jurisdiction, not that it always does so. This was the implication of the Court’s ruling in Hassan v. UK, that Georgia v. Russia No. 2 later put into some doubt, even though all of the individuals detained in that case were in fact found to be within Russia’s jurisdiction. I imagine this formulation was chosen deliberately to leave some of the intervening states with argumentative space to deny jurisdiction for detained individuals in some future cases (e.g. in the immigration context). But this is very unlikely to happen or succeed.

The supplemental briefs do not depart from this basic posture of the joint brief. All of them signal that the Convention can be applied to Russia’s conduct in Ukraine. But the signals are much more mixed when it comes to the supplemental briefs of the UK and France, two military powers for whom the issues at stake in the case are of direct relevance for their own overseas interventions. Predictably, they take more restrictive positions on the personal jurisdiction point, on which more below. Note how even in their prefatory remarks the UK is essentially warning the Court not to go too far in deciding this case. For example (para. 5):

Whilst it is important to hold Russia accountable (both in this Court and other legal fora) for the atrocities it has committed, there are a number of issues of general importance to the working of the Convention raised by this Application. In the course of finding violations by Russia, the Court is invited to ensure that the applicable principles are not expanded beyond their proper Convention bounds. There is in this case, and given Russia’s conduct, no need to take an expansive approach to the Convention’s scope and principles in order to do justice and to ensure that the Convention’s values are upheld. It is important that an egregious case such as this does not risk creating precedents that might be unwelcome or unwarranted in future, less extreme, cases.

Artillery shelling, proximity and context of chaos

Recall that the key outstanding issue in the case is whether the personal notion of jurisdiction can apply to uses of lethal force during active hostilities. At para. 28 of the joint brief, the intervening states ‘note’ the Court’s finding at the admissibility stage that Article 1 jurisdiction could not be excluded simply because of active hostilities. Then, at para. 29, the intervening states ‘endorse’ the Court’s ‘clarification’ (i.e. partial overruling) that Georgia v. Russia No. 2 should not be read as excluding entirely the respondent state’s Article 1 jurisdiction. They then add that:

The relevant question is whether jurisdiction arises pursuant to the application of the “effective control over an area” principle and/or the “state agent authority and control” principle, having regard to the factual circumstances of the acts which are alleged to engage the jurisdiction of a Contracting State under Article 1 of the Convention. For example, the intervening Governments point out that, as already noted above, jurisdiction under Article 1 may arise in an international armed conflict where a State has taken individuals into custody.

So, the only example the intervening states give of jurisdiction arising during active hostilities on the personal basis is that of detention. Even there they repeat the formulation that jurisdiction may arise.

Then, at para. 30 the intervening states completely evade the core outstanding jurisdictional issue – whether artillery shelling, aerial bombardment, drone strikes, or other similar kinetic uses of force can fall within the personal conception of Article 1 jurisdiction:

The intervening Governments submit that the approach of the Court in Ukraine and the Netherlands v. Russia reflects the application of the “effective control over an area” principle and the “state agent authority and control” principle to the specific factual circumstances of the international armed conflict before the Court. The application of the “state agent authority and control” principle is necessarily fact-based. Use of force resulting in loss of life or damage to persons or property does not automatically give rise to jurisdiction under Article 1 of the Convention. On the other hand, as stated above, it would be incorrect to conclude that jurisdiction on the basis of State agent authority and control can never arise in the context of an international armed conflict.

So, the joint brief never tells the Court whether uses of lethal force in the course of hostilities should be covered by the Convention, other than in the case of the MH17. Rather, they engage in the classic lawyerly ‘on the one hand, on the other hand.’ On the one hand, jurisdiction does not apply automatically to uses of lethal force (even though, in my view, it should), on the other hand, it would be ‘incorrect to conclude’ that jurisdiction never applies to such uses of force. The 26 states just don’t say where, exactly, they propose to draw the line here. And that’s the point – that line cannot be drawn in any non-arbitrary way.

The Dutch brief (joined by Belgium, Spain and Slovakia) is only slightly less equivocal on this point. At paras. 49-51 the Dutch brief expressly accepts the possibility that artillery shelling would be covered by the personal conception of jurisdiction, but doesn’t really say anything on what the ‘certain circumstances’ would be when Article 1 would be engaged by such acts. The Dutch brief does, however, much more extensively cover the implications of Georgia v. Russia No. 2 (at paras. 55-67) in order to conclude that a ‘context of chaos’ precluding jurisdiction is not established by the mere fact of active hostilities alone, but by something more (we are not told exactly what). Crucially, the Dutch brief argues that it would be for Russia to plead specifically that any such exception to jurisdiction was engaged on the facts of the case (recall in that regard that Russia is no longer participating in the proceedings, and so won’t be making any specific arguments in that regard).

The Lithuanian brief is, readers will recall, the same as the Dutch one, except that the Lithuanian government added nine additional paragraphs (68-76). And in these paragraphs Lithuania goes much farther than the Netherlands. In particular, it argues that the downing of the MH17 is not in any sense a special case – that is, if that incident falls within the Article 1 jurisdiction, then so should many others. Lithuania also argues that the notion of a ‘context of chaos’ should be confined to the Georgia v. Russia No. 2 case, and that in any event the use of that concept is not appropriate for the vast majority of uses of force against civilians or civilian objects in Ukraine; and also that the Court has at its disposal sufficient information to pierce any fog of war. Bottom line, Lithuania takes a very expansive approach to Article 1 jurisdiction, closely aligned to the arguments put forward by Ukraine itself.  

The Polish brief uses all of the text of the Lithuanian one. The Czech brief uses the same nine paragraphs as the Lithuanian, without using the text of the Dutch brief. These three states fully support Ukraine’s own arguments in the case, without the hedging in the joint brief or the Dutch brief.

The Latvian brief invites the Court not to apply the ‘context of chaos’ notion from Georgia v. Russia No. 2 (para. 54), but it does not really engage with the question of how the Convention should apply to active hostilities.

By contrast, for France, artillery shelling and similar military operations would not be covered by the personal conception of Article 1 jurisdiction (para. 61):

Si l’existence d’une autorité ou d’un contrôle d’un agent de l’Etat doit s’apprécier au cas par cas, le Gouvernement constate toutefois que, dans le cadre d’un conflit armé international, les situations de tirs ou de bombardements sont caractéristiques « de confrontations et de combats armés entre forces militaires ennemies qui cherchent à acquérir le contrôle d’un territoire ». Dans cette situation, il ne serait pas possible de conclure à l’exercice de sa juridiction par l’Etat contractant, sans préjudice de l’appréciation par la Cour du cas très particulier de la destruction du vol MH17.

Note how France basically says that the MH17 is a special case – something that the Netherlands couldn’t exactly bring itself to say – and that other uses of kinetic force in the conflict would be outside the scope of the case. France’s argument in that regard is made in a very summary fashion.

In its supplemental brief, the UK tries (at some length) to persuade the Court to avoid dealing with the conduct of hostilities component of the case. First, the UK somewhat misleadingly notes (para. 7) that the application of its own understanding of jurisdiction ‘would lead to the conclusion that Article 1 jurisdiction arises in respect of most categories of violation committed by Russia and described in the Application’ (emphasis added). The UK notes in particular how, under the spatial conception of jurisdiction, ‘atrocities perpetrated in Kherson, Bucha, and Melitopol, for example, appear to have occurred under a period of Russian occupation,’ whereas the personal conception of jurisdiction would cover ‘(i) detained combatants or civilians; (ii) persons in buildings or premises controlled by Russian troops; and (iii) persons who are abused or summarily executed by Russian soldiers in circumstances of close proximity.’

But, crucially, for the UK, the personal conception of jurisdiction would not include most instances of conduct of hostilities, such as artillery fires, rocket salvos or air strikes. In the UK’s view, the personal concept of jurisdiction would cover only situations such as the Litvinenko assassination, at issue in Carter v. Russia, ‘outside the context of a military operation, in circumstances of close proximity. It is submitted that these cases represent a proper, but importantly an exceptional and narrow, extension of the [personal jurisdiction] principle’ (para. 12.3(b)). Similarly, while the other intervening states expended quite a bit of effort to distinguish or narrow down the Court’s restrictive approach to jurisdiction in Georgia v. Russia No. 2, the UK argues that this approach was correct and should be followed here too (paras. 16-18). Thus, the UK concludes that (para. 21):

However, death and injury caused by Russian soldiers in such circumstances [situations (i)-(iii) above] is to be distinguished from death, injury, and damage to property arising from use of military force in the course of active conflict. In the latter scenario, Article 1 jurisdiction ordinarily does not arise, even if an attack is directed at an unlawful target, the expected incidental civilian loss of life, injury or damage is excessive in relation to the anticipated military advantage, or the use of force is otherwise alleged to be in breach of IHL. Such alleged breaches of IHL, in the context of active military conflict, would instead fall to be considered by the ICC or another international tribunal convened for such a purpose.

Espace juridique

The final point on Article 1 jurisdiction is whether the same standards should apply to armed conflicts taking place on the territory of a state party to the Convention (i.e. Ukraine) as in the territory of a non-party (e.g. Afghanistan or Iraq). At para. 30 of the joint brief, the ‘intervening Governments submit that it is correct to draw attention to the special character of cases addressing military action within the sovereign territory of the Member States of the Council of Europe. Moreover, the “effective control over an area” principle should be applied generously within that territory.’ But this point is not elaborated on further, and I’m not sure what generosity exactly entails here.

The Latvian brief (paras. 52-57) puts much emphasis on the regional character of the Convention and on the fact that the armed conflict is taking place on the territory of a state party – the implication is that the approach to armed conflicts outside the Convention’s legal space should be treated differently, but this is nowhere said expressly.

Interestingly, the UK makes no further argument on the special character of the conflict taking place within the ‘legal space’ of the Convention, because in its view active hostilities should not be covered by the Convention even within this category of conflicts.

Relationship between the Convention and IHL

The joint brief is somewhat more argumentative when it comes to the substantive question of the relationship between the Convention and IHL (paras. 32-45) than it is on issues of jurisdiction – my sense is that there was less disagreement here among the 26 intervening states to paper over. The core message sent here by the joint brief is that the Court ‘must consider IHL in the interpretation and application of the Convention’ (para. 33, emphasis mine). That must be right. There appears to be broad consensus in all of the briefs that the Court’s Article 2 analysis must take into account IHL rules on distinction, proportionality and precautions, and that it should also take IHL account in other contexts as well, where relevant (e.g. regarding the killing or mistreatment of persons in captivity).  

The governments approvingly refer to the Court’s approach in Hassan in carving out a new basis for justified detention in international armed conflicts (paras. 39-41). The joint brief also expressly refers to the lex specialis principle for the purpose of resolving normative conflicts (para. 43), but it provides no examples of such conflicts beyond the detention one in Hassan (where the Court did not mention lex specialis, in my view rightly so). The brief also doesn’t even mention the derogation clause in Article 15 of the Convention and its reference to deaths resulting from lawful acts of war.

The Dutch brief contains a somewhat more extended, even academic, analysis of lex specialis (paras. 70-71). The same text is used Lithuania and Poland. That analysis is a bit abstract and does not say anything specific or practically useful, at least to my mind, for the outstanding issues on the merits of the case regarding the conduct of hostilities.

France argues that the Court has already relied on lex specialis in Hassan. This is somewhat misleading, as the Court did not use the term there, and almost certainly did not do so deliberately. France argues that the Court should embrace the principle directly (para. 70). France does not, however, explain in what situations exactly that principle would be relevant, and especially what are the normative conflicts (if any) between the Convention and IHL, even though the Court expressly raised this question in its admissibility decision. France only says that this issue requires detailed analysis and may be relevant to several Convention rights (para. 73). But France does argue that the right to life would not be violated if the rules of IHL are complied with, relying in particular on the text of the Article 15 derogation clause even in the absence of a formal derogation (para. 74):

A cet égard, le Gouvernement souligne que la prise en compte par la Cour des règles du DIH, même en l’absence de dérogation formelle au titre de l’article 15 de la Convention, implique de ne pas conclure à une violation du droit à la vie si le décès résulte d’un acte licite de guerre. Cependant, les attaques délibérées ciblant des biens ou personnes protégées par le DIH, ou encore les attaques dont on peut attendre qu’elles causent des dommages incidents excessifs par rapport à l’avantage militaire concret et direct attendu, constituent des actes illicites de guerre pouvant conduire à un constat de violation du droit garanti par l’article 2 de la Convention.

Like France, the UK argues not only that the Court should employ the lex specialis maxim, but that it has followed this approach in the past; in fact the UK even argues that the Human Rights Committee did so, while citing its General Comment No. 36 in that regard (paras. 23-29). But again this ignores the fact that both the Court and the Committee deliberately chose not to rely on this terminology. The UK thus argues that, to the extent active hostilities are covered by the Convention, the Court should rely on rules of IHL to determine whether the right to life has been violated (para. 29.1) The UK also expressly pushes back against the argument that the rules of the Convention can add to those of IHL, i.e. that there may be some instance in which a killing is IHL-compliant but is nonetheless not Convention-compliant, arguing that this would undercut the lex specialis approach that it favours (para. 31).

Jus ad bellum and the right to life

A very important question of principle is whether any use of lethal force constitutes a violation of the right to life, even if it is fully IHL-compliant, if the state using force does so in violation of the jus ad bellum. In its General Comment No. 36, the Human Rights Committee concluded that any death resulting from the aggressor state breach of the UN Charter prohibition on the use of force ipso facto violates the right to life, a finding also endorsed by some scholars. Thus, a key unresolved issue is whether the Court will – or should – make any finding on the merits of this case that Russia’s aggression against Ukraine automatically entails a violation of Article 2 of the Convention, even if the person killed is (say) a combatant during hostilities, and was killed in a manner compliant with IHL.

The joint brief does not engage with this issue at all. It merely condemns Russia’s aggression (paras. 1-3), but draws no consequences from this for any analysis under the Convention. The Lithuanian, Polish and Czech submissions frequently refer to Russia’s war of aggression, but also do not argue that this entails an automatic violation of the right to life. The same goes for the Latvian brief. The Polish submission does mention the derogation clause (para. 57), but the argument that deaths resulting from aggression are not those from lawful acts of war is not made.

The complete absence of this argument from the briefs of the intervening states make it even less likely, in my view, that the Court will follow the approach of the Human Rights Committee. In one sense, nothing would be easier for the Court than to rule that Russia committed aggression, and that this entails the violation of the right to life of all persons killed in the war, regardless of the contested and uncertain facts of any specific incident. But doing so would open the door to asking the Court to make such an ad bellum determination in other, less clear-cut cases, e.g. between Armenia and Azerbaijan. It would be unwise, I would suggest, for the Court to turn itself into an adjudicator of the jus ad bellum, and there is no signal from the 26 intervening states that this is what they would want the Court to do.

Conclusion: Applying the Double Mariupol Test

To sum up, all of the 26 intervening Convention member states agree that, even extraterritorially and during armed conflict, the Convention should apply to atrocity crimes against persons in the power of the enemy committed by Russian forces in Ukraine. They all agree that, for example, the violations of IHL and human rights committed by Russian forces in towns like Bucha or Irpin would be within Russia’s jurisdiction. This is progress, I think, compared to even only a few years ago, and is an important signal that these 26 states are sending to the Court.

But there is no such consensus on incidents outside areas under Russia’s spatial control that require the application of IHL rules on the conduct of hostilities, such as artillery shelling. Of the 26 intervening states, three fully support Ukraine’s argument that all such incidents are within Russia’s jurisdiction – Lithuania, Poland and Czechia. Two states directly oppose it, arguing that the Convention should not apply to active hostilities – France and the UK. The remaining 21 states are hedging, with the Netherlands serving as the hedger-in-chief.

There is, frankly, something distasteful even in the implication that the downing of the MH17 should be covered by the Convention, but that hundreds of other incidents leading to even greater losses of civilian life should not be so covered. I personally fail to see a legal or moral principle under which such an outcome could be justified. That the plane was shot down over an area under Russian control cannot be such a decisive factor; the plane could easily have been destroyed just a few kilometers away over territory under Ukraine’s control. This is precisely why the Netherlands can’t bring itself to say that the destruction of the MH17 was somehow a special case, and why it keeps the door open to the application of the personal conception of jurisdiction to other incidents. That said, while these 21 states might be hedging about the applicability of the personal conception of jurisdiction to hostilities, their lack of opposition is also an important signal to the Court: that it would not alienate so many states if it chooses to embrace Ukraine’s position fully. This is precisely what the Court should do.

While France’s express opposition on this question is somewhat laconic, the UK invested substantial energy in attempting to maintain a restrictive position on the Convention’s application to armed conflicts. Some of the arguments the UK has made in that regard are plausible if the Court’s earlier case law (e.g. Georgia v. Russia No. 2) is accepted as correctly decided. Others are patently false. When, for instance, the UK brief asserts as a fact (at para. 15) that ‘the drafters of the Convention never intended the Convention – or the Court – to regulate the conduct of military hostilities in IACs’, it provides no evidence for this claim. This is because no such evidence exists, certainly not in any of the drafting history of the Convention that I looked at. And remember that Article 15 of the Convention expressly refers to deaths resulting from lawful acts of war, a reference that would be entirely superfluous if the Convention was never intended to apply in war.

We shall, of course, see what the Court makes of all this. My own views are set out in the Nottingham amicus brief – that any use of force by a state agent against an individual constitutes an exercise of authority or control over that individual, and that it shouldn’t matter whether the killing is proximate or distant. The (undoubted) difficulties in reliably establishing the facts during an armed conflict should be resolved, inter alia, by applying principles on the burden and standard of proof, not by pretending that some types of killing are not regulated by human rights law at all.

Or, to put this point somewhat differently, to my mind, to be regarded as valid, any position on Article 1 jurisdiction has to pass what I will call the Mariupol test.

If this – the destruction of a whole city, and the killing of many thousands of civilians inside it – is, under any particular understanding of Article 1 jurisdiction, not a question on which human rights law has anything to say, but is a matter solely regulated by IHL, then I would respectfully submit that this understanding of jurisdiction needs revisiting. Make no mistake, this is exactly the implication of the UK’s argument: that killing one person through poison violates their right to life, but that killing thousands or tens of thousands by shell, bomb or missile does not even conceivably do so.

I hope that the Court will not walk down this path. I hope that it will pass the Mariupol test. I also very much hope that the Court will pass a different, counterfactual Mariupol test. Imagine if the city being destroyed was not on the territory of a state party to the Convention, but in some other state. Should the position on Article 1 jurisdiction be any different? Surely the answer is no. If the city destroyed by Russia was not Mariupol, but Minsk, the Convention should still apply while Russia remained bound by the Convention. So should it apply if the city being destroyed was in Iraq or Syria or Palestine.

That the Convention is a regional treaty has nothing to do with this basic point. The Convention, like any treaty, applies only to the conduct of its states parties, but there is no reason why it should apply differently in Europe and outside it (and remember that until Russia’s expulsion ‘Europe’ stretched all the way to Vladivostok). Some of the Court’s judges are clearly tempted by the espace juridique notion first concocted in Bankovic, and the 26 intervening states are signaling to the Court that they would be fine with some version of that approach. But nothing would be worse for the credibility of the Convention system, in my view, than for the Court to hold that killing Europeans or destroying European cities is a human rights problem, while killing non-Europeans is not. Which is why I hope that the Court will pass this other Mariupol test, and resist the temptation of double standards.

Finally, as I explained, there is much more agreement amongst the intervening states (and other intervenors) on how the Court should approach the interplay between IHL and the Convention. In the vast majority of cases the rules of these bodies of law go in the same direction, and this is especially so when it comes to the killing or mistreatment of persons in the power of the enemy. When it comes to the conduct of hostilities, there seems to be little doubt that the Court must take into account the rules of IHL on this issue when interpreting the Convention. Put simply, there will be a violation of the right to life in the course of hostilities if a person is killed in an attack that does not comply with IHL rules on distinction, proportionality, precautions and means and methods of warfare.

It is unlikely that the incidents at issue in this case will involve the difficult problem of possible norm conflict between the rules of IHL and those in the Convention. In particular, as Sangeeta and I argue in our brief, collateral damage in uses of lethal force does not automatically violate the Convention even outside armed conflict, and there is no reason to believe that it would violate the Convention during armed conflict. Similarly, the Court can properly deal with mistake of fact scenarios even under its established case law on Article 2. It is striking in that regard that the intervening governments are pushing the Court to expressly rely on the lex specialis principle, but that principle is one of dubious utility, is not formally enshrined in the Vienna Convention on the Law of Treaties, and is capable of being understood in different ways. It is also striking that, in doing so, the intervening governments almost completely ignore the one bit of text in the Convention directly dealing with the taking of life in armed conflict, i.e. the reference in the Article 15 derogation clause to deaths resulting from lawful acts of war. 

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Dwayne Reynolds says

January 11, 2024

Dear Marko,
Thanks for this useful summary and insightful analysis.

Regarding the relevance of art 15’s reference to deprivations of life from lawful acts of war, you are surely right that the drafters had in mind the possibility of jurisdiction otherwise being engaged during armed conflict. Odd of states not to address this. But to my mind it doesn’t necessarily follow that states were conceding jurisdiction would otherwise be made out for all purposes during armed conflicts. More precisely, the drafters might have assumed that states would have been open to deprivations of life from their lawful acts of war within their own territories being within their jurisdiction (c.f. extra-territorial killings by them which might be thought to be primarily within the jurisdiction of the relevant territory in which the individual is targeted).

If that is right, I could see the signatory state in whose territory the extraterritorial killing took place having a compelling case for bringing an interstate case against the killing state (for causing the deprivation of life within the territorial state’s territorial jurisdiction). That limitation (ie precluding individual rights of application) might also be attractive from the perspective of states nervous about ETJ and floods of individual claims.

Personally, I don’t mind the regional instrument/ espace juridique argument. I do think it is unfair to suggest that to the extent extraterritorial cases are outside of jurisdiction the Court is thereby saying there is no human rights violation (cf ECHR violation).

In any event, if the Court is attracted to a territorial approach do you think there is any scope for Russian targeting to be recharacterised as territorial in some senses? For example, if pursuant to a policy in Moscow
of indiscriminate targeting or systemic failure to implement positive duties (feasible precautions; suppression of IHL violations etc)? Indeed, if assumption of state functions is a category of state agent ETJ couldn’t the Russian war aim of regime change fall within that category?

Best,
Dwayne